If You're Paid by Piece Rate in California, You Must be Paid for Breaks

On behalf of Girardi Keese of Girardi | Keese posted in Employment Law on Wednesday, August 10, 2016.

Under California Assembly Bill 1513, signed into law by Gov. Jerry Brown in 2015, any employer paying their workers on a piece-rate scale are required to pay for breaks and other "non-productive" time, at or above the state's minimum wage floor of $10/hour. (The law predominantly affects agribusinesses, salons, spas and other businesses with a tradition of paying employees on a piece-rate basis.)

An old law coming under pressure

While many states outlaw or frown on piece-rate wages, in California, it has been the heart of labor law for the vast agricultural industry in the central part of the state since 1919. When Assembly Bill 1513 came up for a vote in 2015, farm operators argued that it would destroy the incentive compensation program many agribusinesses and workers have relied on for decades.

Now that the bill has been in place for more than a year, large food growers seek amendments. The Nisei Farmers league - representing more than one thousand growers and packers in an affirmative defense action in opposition to the law - are pushing back harder than ever, on grounds that it is "constitutionally vague" and impossible to follow. In a statement filed in the Fresno County Courthouse, they argue, "studies show that, as compared to hourly compensation, piece rate has the potential to increase employees' compensation as well as their productivity, which creates numerous benefits for employees and employers, and ultimately cost savings for consumers."

Pay for breaks and "other non-productive time"

The law is written to ensure that farm workers receive the same wage and hour benefits that other employees typically receive under the federal Fair Labor Standards Act (FLSA), as well as state laws requiring hourly (non-exempt) workers receive pay for breaks throughout their workday. It also acknowledges that salaried (exempt) employees are paid for non-productive time throughout their workday, as well.

The basis of the affirmative defense lawsuit rests on the argument that the language regarding "unproductive time" is too vague. However, the lawsuit has not yet come up in court, where it may be overturned on grounds that the language is constitutionally vague. If that happens, the law may die or face amendments by the California State Assembly and returned to the governor for signing.

Bottom line: workers paid by the piece are entitled to receive pay and back pay

In short, unless and until the affirmative defense action is successful, workers in the agricultural industry must be paid the earnings they are entitled to for their regularly scheduled breaks.

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